Social Enterprise

Another firing over Facebook comments: Lawsuit pending

A new legal case tests the reach of social media policies, as the National Labor Relations Board contests a firing over Facebook comments.

As long as people continue to think of Facebook as their personal diary (a personal diary viewable by everyone from your sixth grade best friend to your dentist), there are going to be problems. And, consequently, there are going to be lawsuits, because that's just how people roll these days.

Take the case of Dawnmarie Souza, an employee of American Medical Response of Connecticut. After a dispute with her supervisor, Souza, on her own time and not at work, posted disparaging remarks about him on her Facebook page. Some of her coworkers then posted comments supporting Ms. Souza's criticism of the supervisor. American Medical then fired Ms. Souza because she violated company policy against depicting the company in any way on social media websites without permission.

Since American Medical had a written policy, the case seemed pretty straightforward. That is, until the Hartford regional office of the National Labor Relations Board (NLRB) stepped in, claiming Souza was wrongfully dismissed because the Facebook activity can be considered a "concerted action." (Concerted actions are federally protected as part of the right to organize labor in order to discuss unionization of a company.) Kind of like a high-tech Norma Rae.

(OK, now I have a mental image of Souza standing on a table in a hot, crowded plan holding up her iPad with the word "Strike" on it. I guess you'll have to see the movie to get that one.)

The NLRB's position will also most likely be tested against case law that has interpreted what employees can be fired for when they're not on the job. It will be an interesting, precedent-testing case.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

226 comments
leenee647
leenee647

People are putting to much of their personal business on facebook. You shouln't be talking about your job on facebook not knowing who may read it. IT'S ENTERTAINMENT.

jperick.mbei
jperick.mbei

Greetings. Like General DeGaule reportedly told Algerians wanting their independence right NOW and the French wanting Algeria to remain or become an extension of France: "I understand you", I would say to those those who defend the firing and those calling it "censorship", I understand you. However, whenever we face a situation like this one, it seems wiser that we approach with caution. What do you do when someone attack you and throw sand into your eyes? Do you blindly counterattack like a bull, or do you first try to clear your eyes, ensure that you can see before responding to the attack? A few observations worth making: (1). An employee at a private organization is not a congresswoman. Even House Representatives and Senators have their own "internal rules" they are required to follow. And I think that anyone who breaks these rules can be subjected to some kind of sanction. (2). Freedom--and with it, freedom of speech does not mean "anarchy". Now, a few questions I would like the experts to answer if they please and choose to: (1). What does the Constitution say relative to our Freedom of Speech and the rights and responsibilities of employers and their employees? (2). Had Ms. Souza used all the avenues offered by her employer before posting these "disparaging remarks" on Facebook? If yes, what was the documented outcome? I do not know anything about the case other than what I read here (I am quoting the section that most strikes me): "After a dispute with her supervisor, Souza, on her own time and not at work, posted disparaging remarks about him on her Facebook page. Some of her coworkers then posted comments supporting Ms. Souza?s criticism of the supervisor. American Medical then fired Ms. Souza because she violated company policy against depicting the company in any way on social media websites without permission". If I must take the above comments a face value, it appears that Ms. Souza had an argument (a dispute) with her supervisor and, subsequently using "her own time" posted disparaging remarks on her Facebook about her supervisor. OK, the issue here should not be whether she used her own time or not. I think that there is a special context here. Here is how I see the situation: (1). Ms Souza knew about the company's policy. It is likely that she may have signed the policy document (she would have strong case though, if her employer never had her sign the policy document). (2). Not withstanding her knowledge of the company's policy, she decided to post "disparaging" comments about her "employer" (remember, in this case, it is no longer about the "supervisor" but the "business entity"), a corporation on a public forum. It might look like in so doing, Ms. Souza had shot her own foot. Because such negative comments are likely to cost any business its reputation and subsequently, customers. I honestly doubt if Ms. Souza and the Union have a strong case here. I also doubt if this can fit into the frame of whistle blowing policy. Even then, Ms. Souza may need to to provide a factual evidence that she had brought the case to the attention of her supervisor, the supervisor or her supervisor, and the company's EEO before going public. Bottom line is, as employees, we have obligations and rights. As long as you work for a company, you are bound by the company's body of policies are are expected to abide by these policies even in a situation where you may feel a victim of some mistreatment. You have the right to (1) use the company's internal complaint resolution mechanism, (2) quit and (3) take a legal action. Burt going out to publicly trash the company that pays you before you quit is reckless, professionally immature and unwise. I am not condoning censorship. What I am suggesting is that people use professionalism, wisdom and/or caution whenever they find themselves in such a situation. At best, seek advice before undertaking any potentially costly action. Never mix politics and your employment. Like a British saying goes, at best "look, before you leap".

BlueCollarCritic
BlueCollarCritic

"Worried about the recession? Not me. If we do get to the point where we can't finagle the books to make a profit we can simply to to the goverment for a bailout. Besides, I rather like the tougher economy, makes it easier to keep the slaves in line and force them to do as we like. Where else are they going to get a job if they don't do as we say? ~ Any Major Executive of any International Corporation"

Tiger-Pa
Tiger-Pa

I used to work for AMR where management and supervisors alike were always a bunch of loose cannons that showed little respect for it's employees. I was let go after six years as an IT tech that was listed as exempt on the payroll. I worked sixty hour workweeks without OT pay. I was receiving entry level salary. My managers didn't even know the difference between being salaried and being exempt. Ironically my director didn't like my attitude of speaking up for myself. I hope Ms Souza gets a bundle. All I got was my unemployment check. I'm still unemployed after four years... But happy I don't work for AMR.

jkameleon
jkameleon

... should be good enough reason to fire someone, no matter what he posted in there.

ndean.jones
ndean.jones

Actions Taken after the time "on board" are not the right of employers to govern. Trying to rule every part of your staffs' life will result in anarchy, treat your employed crew as family and let them have a life of thier own.

TaDaH
TaDaH

she was well within her right to be fired.

seven2seven
seven2seven

"...standing on a table in a hot, crowded plan..." Should it read "plant"? Yes, the story was that interesting...can I get my time refund?

Bronte G
Bronte G

I wonder if this supervisor is good enough to hold down HER job any more. And I wonder if the unhappy employee was doing a good enough job in the first place. If both were doing their jobs well, it seems that legal action by the management is just another example of bad interpersonal relationships,and the business is in need of some counselling in that. Why do so many people think that handing their problems to a lawyer will fix them up? Is that really The American Way?

andiestwo5
andiestwo5

I'm your boss and I own you. and if you tell the world how much of a butt head I am,,YOUR FIRED!! A Job is more than a way to make a living,,For most its sacrifice and they put in hard work for the Employer and yet the Employer only thinks of self enrichment. There is NO consideration for the Employee or their life. I think this should end! Don't waste your future working for someone who don't care about YOU!! :)

g01d4
g01d4

I'm assuming that the remarks can't be generalized to cover the company per se. Also for those who don't like censorship - try harassment

mwclarke1
mwclarke1

Free Speech, or we should even consider this a free nation anymore and just ear up those old stale documents(Declaration and constitution), Although sometimes I think they have been already ! People should be careful about what they say, when they say it and where. But say what we must within reason. And that is as long as not using a company resource and time to do so, can say anything about anyone needed. Now, what you say and how may warrant a libel suit if you are not in the right and I think based on what I see with this case is where this needs to be and the Company should have not taken any stance unless their name/product was slandered directly somehow, then again that is another libel suit, I have not enough information to know if the Company had any grounds to fire her based on her not using company resources or time ? But since we do live in the US, People do have a right to express their concerns as a matter of free speech as long as do not trifle upon others rights as a whole.

chaynes33
chaynes33

Looks like you have opened a can of worms. It should be self censorship and that takes on a new meaning. Keeping something private doesn't belong on or in a chat room or social network where everyone around the world can read. Knowing when & where to post will keep you out of trouble. It seems to me that no one wants to take personal responsibility for their actions & tend to blame everyone else. "One finger points at me while three others point back at you."

jasondlnd
jasondlnd

The Internet is written in ink. Writing disparaging remarks about your employer and posting it online, even though it is off the clock and using your own equipment can get you fired. Why? Because your employer can fire you for any reason at any time. Writing disparaging remarks about your employer and them posting them online gives your employer a reason to fire you, even if you are a model employee at work. It is PERFECTLY LEGAL for an employer to do so, even if there are no clear cut rules or written employee policies regarding such action. Employers typically monitor what their employees post on social media websites. There is a reason I'm not on Facebook, Myspace, or Twitter :)

rick.
rick.

------------------------------------ redacted

BlueCollarCritic
BlueCollarCritic

As much as I hate the idea of yet more legislation (we already have way too much legislation) there needs to be some protection of the employee from their employer for actions taken outside the job; the job being the time for which the employee is working to be paid by the employer. Had this person done this 20 years ago and did it sending a letter to one or more friends and her employer got hold of said letter and them fired her the employer would be in big trouble. The digital age has opened up to the world what used to be private conversations. Too often corrupt managers and supervisors in larger businesses are able to coerce those under them thru all kinds of threats and now they are able to more easily gather info on these employees thanks to social media. There should be some kind of law preventing employers from firing employees based on information gathered from sources outside the workplace and that are not directly associated with the employers business. This way an employee could speak freely on their website but if they posted negative comments on something like a conference related blog (a conference or event that the employer sends the employee to or is associated with) they would then be accountable to the employer. Just because the social media makes it easier for employers to spy on what their employees are saying and doing outside of the job that does not mean the employer should be able to use that to their advantage. If an employee goes to a site directly linked to the employer then the case can be made they are directly targeting the employer and therefore accountable for what they say. If however the employee is doing this on their personal site be it Facebook or elsewhere then it should be protected. If the employee had been somewhere like a bowling alley and her supervisor just happened to be there and over heard her say something about the supervisor to those with her (not knowing her supervisor is there) should he supervisor then be able to fire her because he did not like what she said? NO.

Sul52
Sul52

If you work for a company that you are unhappy with, and unhappy or displeased with policy or supervision, you should first take through the process within the company. If that doesn't satisfy you then look for other employment. If you verbally run down the company (which can harm the public perception of that company) the company and you (the employee) are better off parting company. This has nothing to do with free speach. It has to do with common sense and free association. The company (management) is also free to choose whom they associate with. And if you choose to exercise you free speech be prepared to pay a price. Be courageous, find new associations.

MariaMon
MariaMon

Just thinking aloud...if employees can publicly post disparaging remarks on FB about their employers...on their own time, of course...why shouldn't employers be able to publicly post on an employee's poor work performance on a company FB site as well? I am betting that most people would cry foul over this idea because of the potential damage it could do to an employee's future employment. (No matter if the remarks are true or not...) I am an at-will employee. I am not management and can be fired at any time. In order to work for my employer, I agreed to dress and act a certain way. My employer has every right to demand high standards from its employees...just as I have the right to choose not to work for them if I don't like their rules. Should I get drunk and run naked down my neighborhood road and it end up on YouTube, I will certainly expect to get fired...irregardless of whether I was on my own time.

wayneleduc56
wayneleduc56

What happened to the first amendment rigts of the a person, to me that was what she was exercising

steve.holland
steve.holland

One may say whatever they want. But, a job is a privilege not a right. As long as the subject matter is not protected (and complaining about one's boss is not constitutionally or legally protected speech), a company can, and should be allowed, to fire anyone for any reason.

Arcturus909
Arcturus909

While the comment I am about to make is only potentially applicable to the case at hand (since I don't know the person, didn't see their post, and don't have all the details) I want to take this opportunity to rant a little. This has been building for awhile. I am seeing far too many people using Facebook not as a "personal diary" so much as a place to express negative feelings about other people (whether using names or not - usually not) instead of dealing with the person they have the problem with. Aside from trying to garner sympathy, the only reason for posting something like this seems to me to be - letting the person know you have a problem with them without allowing a confrontation. (Perhaps allowing a non-face-to-face flamewar if they are your "friend") Maybe I've just got too many "Passive aggressive" friends. :)

wjholtjr
wjholtjr

For all you folks who feel that employees have the right to speak freely about their employer, their supervisors, etc. on FaceBook because it is their free speech right to do so, then how about extending the same priviledge to the employer. Are you okay if we post about your outrageous behavior our on company Facebook page? Sample Post: Carol Y angered a customer today and cost us a $100,000 client. Carol has a temper that occasionally gets out of control and it really hurt the company this time. We've tried working with her but she has an arrogant attitude and it seems she has no plans for changing. She is now on probation and we hope she'll mess up one more time so that we can get her out of here. Her co-workers are sick of her, she drags down the whole department, and those of us in management can't wait for her to mess up so that the paperwork will be complete and she will be gone. Sample Post: John X failed his random drug test today. Want to guess what he is using? Doesn't matter. He's fired. Do you think Carol and John would sit back and allow those comments saying, "It would be censorship for me to expect them to not say those things about me."? If employers must allow employees to say whatever, whenever, and its all about not censoring their speech, then why not afford the same right to the employer?

taylorstan
taylorstan

Every company has employees that are not happy. They are going to express that any and every way possible. They will say it to friends and families face to face, over the phone, email, and shockingly yes on the internet. They will tell complete strangers the same thing if it it is brought up on conversation. Companies/Employers need to get over the idea that employees are not going to complain. Start using it as a tool for figure out what is the issue at hand. Obviously, somthing is not meshing between this supervisor and the people working under them. Especially if other workers chimed in on the post. My question is, why haven't the other employees that posted a responce to the post fired also? Would that not also be a violation of this "policy"?

Paymeister
Paymeister

Let me illustrate a case from a job I held in a previous decade: I was enjoying a pleasant theological discussion with co-workers over lunch when a young lady said, "So you're saying that without Christ, my boyfriend is going to hell?" My reply was along the lines of, "Well, I don't know that I would cut to the chase quite like that, but, yes, he would." The girlfriend accepted this as a part of the discussion (in fact I was speaking out of concern for her and the boyfriend rather than rancor). But another employee walking past overheard my words, took offense, and reported me to the director. I was called into his office and told I could not say such things. I responded, "Well, Sir, I understand that you have full authority to fire me for violating your orders, and I will do the best I can to keep my mouth shut on such topics. But if I honestly feel that God would have me speak, I will go ahead and do so. IfI do, I recognize full well that it will likely cost me my job." He blinked, but saw that I was actually not challenging his authority at all. Rather, I was recognizing and accepting that the consequences he outlined were indeed within his authority should I act to violate his orders. It amazes me that folks don't understand honest "gotchas". If you speed and a cop catches you, why not recognize that you took a risk and got popped? He won that round: it was a legit ticket. Fighting it, frankly, would be a form of lying. Here, her contesting the firing says that she lied when she signed the company rules or she's denying that she made the posts. Seems an honest 'gotcha' to me.

QAonCall
QAonCall

Problem solved. This is why card check is a bad idea. This person would be crying boo hoo had they been wronged by the 'contract to work' and subsequent governing rules and standards they agreed to follow. But now when they breach that agreement, boo hoo is me, I was wronged? If you do not want this to happen: 1) Work for yourself 2) Do not sign agreements to abide by company rules and standards 3) Do not write down, what you do not want others to read (attributed appropriately to my mom, from when I was in kindergarden, once again validating you pretty much learn everything you need to know in kindergarden, you just spend your life thinking you are now smart enough to evade these simple life truths). Peace!

mvedwar
mvedwar

PEOPLE - Does everyone write everything down when just blowing off steam OR even when there is a real problem? NO, so don't do it on FB! If you are having problems with the job or person there then man-up and confront them or find other employment. Quit bitching - there are tons of people that are in worse shape and would love to swap positions with you in a minute. As an employer I may not agree with employees all the time but I will respect them if they stand up for something and I will probably move them to something better. This means they are thinking on their own. As for the whiners, they aren't going to move up anyway. They think life owes them a handout.

jszivos
jszivos

I once had two coworkers post negative comments on facebook about department meetings, they said that the meeting was a waste of time. When I approached one of them about it, he passed the blame on the other guy - "if he can do it, why can't I?" When I spoke to the other guy, he said "I can remove you from my friends list if you don't want to be my friend." Crazy immature... I asked both of them what we can do to make the meetings more-beneficial, with no recommendations from either of them! I shouldn't need to tell them that if they have a problem with the department then they should speak to me or my supervisor, not the Interwebs... It's no wonder why we're at an all-time high unemployment rate!!!

thomas.l.deskevich
thomas.l.deskevich

It seems these days when someone tells you something you do not want to hear, even if it is the truth, the response is to attack that person. Or point out their faults. I wonder if we thought about what is said to us, and possibly it is an opportunity to improve. Our QB from the Steelers got a 4 week suspension for behavior OFF the field.

cadman53114
cadman53114

What I hate when I see comments on FB is the mindless dribble people think the world wants to hear. Things like "I going to the hair dresser today, then grocery shopping." Or "just got home from long day at work. Going to bed early tonight." WHO CARES?! Would you stand up at a podium at the Super Bowl or World Series and announce this? No... then why do it here. FB is not like standing in a bar with a group of people you know and saying "my boss is an idiot" or "some days I hate my job". But saying it on FB is like saying it on national television, or on a podium at the Super Bowl, World Series, NBA Finals, Stanley Cup, Indy 500, Republican and Democratic National Conventions, blah, blah, blah, blah, blah... have I made my point yet? As you read this you are thinking "what is the garbage I am reading" yet the same people thinking that are the same people who think they can say anything on FB and think the whole world real gives a S#%t! If this sounds like a rant it is. I am tired of people wasting time thinking everyone wants to hear what you have to say. Most of the people who post this junk on FB are the same people who talk about you behind your back to your co-workers. So chew on that for a while then next time you think what you say to them is private. Don't be shocked when you see what you say show up on their FB wall.

Thump21
Thump21

If the remarks were directed specifically at her supervisor without mention of the company or other entity representative of the company then the case is no good.

egpor95
egpor95

If she had had that discussion in private with her co-workers she would be protected. She did in fact post disparaging comments about her supervisor, and by inference her employer, on a PUBLIC forum where anyone on her friend's list and her friend's friend's lists could see it. This removes it from the protected "unionizing" actions and places it in the realm of general bitching about something she was prohibited from doing. Unless she specifically made some comment about organizing, or something that could be reasonably construed as such, she was in clear violation of written company policy and her firing will, and should be, upheld.

BolkoBailey
BolkoBailey

A major factor in my son being fired were the comments made by his colleagues ("Facebook Friends") about a relatively harmless post that he made about his local management. Seems that, through no fault of his own, he became branded by TUI (their employer)as a trouble maker. Just shows how careful you need to be when addressing a wide, public, audience!

smankinson
smankinson

Odd thing is that I see Comments in these blogs all the time that I think would get someone fired if the wrong person saw the comment

alliancemillsoft
alliancemillsoft

The short sighted nature of sheep, er people, amazes me .. I don't want nor need a life's record of comments and photos to come back and haunt me someday. I don't need some corporation like Facebook to know more about me than I want them to.

tvmuzik
tvmuzik

I'm in total agreement with Mrs. Souza, Hands Down. What she does on her own time is HER own business, Not the employers. The employer should be sued for wrongfully terminating her, And INVASION of her Privacy. Employers have stepped over the line, even Before job-seekers get hired their Personal lives come underscrutiny when an employer does a "background check" on job applicants. ExcUUUse ME, Boss, My PERSONAL life is NONE OF YER F'edUP BIZNESS--- I Didn't invite you to my webpage, so STAY The F**K OUT! Employees get harassed every which way while on the job. They'll complain to the management, but "Management" does Nothing. The employee complains to the next upper lever department, Nothing gets done about the problem. So, how can an employee confide in Anyone at the company when there's trouble? And then there's the fear of retaliation when an employee files a complaint. The only Safe place for a grieving employee to vent his/her frustration is in a Virtually social environment OUTSIDE of the workplace on one's own PERSONAL time. Companies frown on this because they claim it will "damage" their reputation. TOO BAD... Treat your employees with RESPECT and your company will be respected. But if you treat your employees like Sh*t, you will be exposed and the Truth will be known; pretty much the same way an employer gives a bad reference about an employee to other companies- Former employees have a right to do the same about their former companies, in Respective return. I don't care what Anyone thinks about my comment here; I've been dealing with crappy employers most of my life and it's time the tables got flipped over on them.

glensclassicimages
glensclassicimages

Without having seen the actual post, it sounds like she wasn't depicting the company, but her boss. That if she wasn't perfoming slander, then it sounds like free speech!!! I would think that in the private sector she'd be protected.

steve
steve

My daughter was forced out of her job at a shipping company because of comments made on her Wall on Facebook. She learned a valuable lesson: Privacy doesn't exist on the internet, so don't create trouble for yourself by mentioning your job or work colleagues in a disparaging way. Cos they will hear about it, either by seeing it themselves or having some helpful 'friend' copy and paste it. The first my daughter knew of the trouble she was in came up on her Annual Review, where she was forced to resign. Rule 1. Dont talk about work. Rule 2. Separate you work friends and your real-life friends Rule 3. Facebook bites!!

afc1903
afc1903

So if I go to the pub after work and very loudly say my boss sucks and the company is a piece of *bleep* I'll get fired?? Err.. no. So why is this ANY different? Is there some cut off on the number of people who need to see/hear a statement before it becomes a firing offence? 2? 4? 12? 2 million?

Ginger-Ale
Ginger-Ale

Yeah, that was seriously carreer limiting. You dont bite the hand that feeds you and teh boss is always right.

MetaconomyCEO
MetaconomyCEO

So it's official then. My boss was an idiot.

papeirce
papeirce

Employee-At-Will. Most Employer/Employee relationships are defined as such in the employee handbook and means quite simply that you or the employer can terminate the relationship with or without notice, and with or without reason. The only reason for the involvement on the part of the NLRB is the fact that "American Medical Response" is a private ambulance company with union representation. There's a plethora of news articles on "EMS1.com" and "FireRescue1.com" about Firefighters and EMT's/Paramedics being fired over FaceBook postings. This issue has become so pervasive that employers now have company policies regarding FaceBook accounts and postings. (Remember the flack regarding Internet Usage Policies?) I suggest making onesself familiar with those policies. Be also mindful of the fact that said policies may be changed without notice by the employer, so don't assume you are protected by the First Ammendment (Especially since the original intent of the First Ammendment was protect a citizen from retribution by the Government). TIP: If you are a "Jersey Shore" drama queen/king wannabe, Do NOT "friend" people at work or click "LIKE" on the Company's FaceBook page as it allows them to see your postings despite your (Ahem) "Privacy Settings". It also helps if you keep your "drama" to yourself.

Whabligone
Whabligone

not a legal way to air your dispute, but i would say since they noticed it and took action against her(a little bit harsh), they should also investigate the superviser because other employees supported her by commenting.

jacobus57
jacobus57

The whole PC/CYA thing has spun way out of control. The blurring of the line between one's business and private life is positively Orwellian. Praise be the the NLRB on this one.

frits
frits

Company HR types are naive when they over-react based on a Facebook posting unless there is blatent slander involved. The medium is intended for people to tell their friends what they are doing, and while HR might disagree there is that nasty little freedom of speech thing that limits how much a company can police what workers do in their own time. The reaction and then the public fallout is where the damage to a company happens: typically instigated by HR or management. It is unrealistic to attribute that damage to trigger events that preceded that damage causing event since it can be argued that HR or Management is rational as well as responsible for their actions. Maybe we see some fallout in HR or Management for over-reacting to Facebook comments (maybe it has happened already but the players are savvy enough not to go public with it)

Sterling chip Camden
Sterling chip Camden

Especially now that reputation is being recognized more and more as a real asset to corporations, and social media is now considered semi-authoritative on that point, companies naturally wish to protect themselves. In a way I can see their point: speaking ill about your company online is perhaps more damaging than embezzlement or competing against them. OTOH, more and more people are seeing open, public communication of their most inner feelings as a kind of mental health requirement. Plus there's the whole freedom of speech and information side of it. My own feeling is somewhat on the radical side: if companies piss off their employees, the deserve the bad press. If there's a good answer for it, answer public defamation with public explanation. The sooner everyone gets over the myth that any company has no warts, the better off we'll all be.

bkindle
bkindle

My wife worked with some people at a major hospital in the region that fired some people over pictures that were posted from a party they attended off-clock. Created quite a mess as I think one of the former employee's also sought legal action. You're right though, people need to stop using these social media platforms as personal diaries of their private life. Are we living in a narcissist world?

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